ADF is providing free legal representation to Idaho in anti-abortion, anti-trans cases
It's a "very bad practice," a former state attorney general tells Law Dork.
Idaho Attorney General Raúl Labrador, a Republican, has brought on the far-right Christian legal advocacy organization Alliance Defending Freedom to represent the state in at least three cases in recent months, documents obtained by Law Dork show. In each case, ADF has agreed to represent the state “without charge” — a move that experts say raises several ethical concerns.
“Are they representing the state of Idaho or not?” James Tierney, a lecturer at Harvard Law School who was the former attorney general of Maine and teaches courses on the role of state attorneys general, told Law Dork. “They have their own principles,” the former Democratic AG said of legal advocacy groups — adding that such groups also have their own funding sources, which are unknown to the state’s residents.
On its own website, ADF declares its religious-infused principles loudly: “Alliance Defending Freedom is one of the leading Christian law firms committed to protecting religious freedom, free speech, marriage and family, parental rights, and the sanctity of life.”
Law Dork previously reported that ADF had appeared as counsel on Idaho’s request at the Supreme Court asking the justices to allow it to fully enforce its near-total abortion ban, regardless of the requirements of the Emergency Medical Treatment and Active Labor Act (EMTALA). ADF lawyers appeared on the brief alongside lawyers from Labrador’s office and lawyers from the D.C. firm of Cooper & Kirk.
The justices are yet to rule on that request. In the meantime, a district court’s injunction limiting the enforcement of Idaho’s abortion ban to the extent it conflicts with EMTALA remains in effect while the state’s appeal is considered by the U.S. Court of Appeals for the Ninth Circuit.
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EMTALA-related Law Dork coverage:
In response to a public records request, the Idaho Attorney General’s Office provided Law Dork with the ADF representation agreement in U.S. v. Idaho, which is signed by ADF’s Erin Hawley and Labrador.
Hawley, in her role at ADF, has been the face of the effort to restrict mifepristone, having argued at the U.S. Court of Appeals for the Fifth Circuit in support of a lower court ruling that purported to reverse the 2000 approval of the medication abortion drug altogether. (Even the far-right Fifth Circuit disagreed with that argument.)
The Idaho AG’s Office also turned over representation agreements between ADF and Idaho for Roe v. Critchfield — the challenge to the state’s new anti-trans bathroom ban — and Washington v. FDA — a case in which Republican attorneys general have sought to intervene in a case about mifepristone access brought by Democratic attorneys general.
Note that these arrangements go an important step further than ADF’s relationship with West Virginia in litigation challenging the state’s anti-trans sports ban. There, ADF is representing an intervening party, but working closely with the state in its defense, as covered previously at Law Dork. Here, ADF is actually representing the state directly.1
Kathleen Clark, a professor at Washington University in St. Louis School of Law whose research focuses on legal and governmental ethics, said the Idaho arrangements raise several areas of ethical concern.
In addition to actual conflicts of interest that could arise, Clark also noted that, even if not an actual conflict, the public interest at any decision point — from the wording of a brief to the next steps in litigation — may well not be the same as ADF’s interest due to its advocacy aims.
Tierney echoed that concern. “It is a very bad practice to allow an advocacy group to represent the state,” he said. “They will represent their true client, the advocacy group, not the state.”
It’s not a new practice, though. Among other instances, Tierney pointed to then-Alabama Attorney General William Pryor’s use of lawyers from the American Center for Law and Justice to defend a state law protecting student prayer in schools in the late 1990s. As The Washington Post reported at the time, “Pryor said Jay Sekulow, the chief counsel of the American Center for Law and Justice, an offshoot of religious broadcaster Pat Robertson's Regent University, has agreed to carry the appeal on a pro-bono basis.”
More broadly, Clark said, the use of outside counsel “without charge” can affect the control over government activity that the legislature usually maintains through the appropriations process. “When a state agency accepts a gift,” she said, “that can undermine legislative control of executive branch activities.”
Notably, in one provision of the agreement, the AG’s Office agreed to “consult with ADF” regarding any communication with the media regarding the representation.
Third, Clark said, this sort of agreement can also distort government action because Idaho isn’t bearing the costs of its policies: “If the state AG had to bear the cost, that could influence the state AG’s behavior. ADF is removing that question by gifting the service.”
In other words, if a state has to pay for the defense of discriminatory and anti-abortion policies, it might eventually think twice before enacting them. If ADF is picking up some of those costs, that becomes less of a concern.
Finally, Clark noted that this sort of arrangement can have its own fallout effects by providing an advantage to ADF in its advocacy mission by it being able to take on the mantle of the state in ideological cases like these.
Notably, unlike ADF, Cooper & Kirk — the other outside counsel retained by Idaho in U.S. v. Idaho — is being paid for its work. According to that agreement, also obtained by Law Dork, Cooper & Kirk was paid $10,000 to review the stay application and serve as counsel of record on the request. (Although the agreement states otherwise, Cooper & Kirk was not listed as counsel of record in the filed stay application, a state lawyer was.)
Tierney said that is the better way to do it.
“AGs should use their own staff, or hire outside counsel and pay them, so that taxpayers can see how much it’s costing,” he said.
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This paragraph was added shortly after publication to provide additional context.